Urban League Opposes Kenneth Marcus Nomination for Assistant Secretary of Office of Civil Rights at ED

Wednesday, January 10, 2018

Dear Chairman Lamar Alexander and Ranking Member Patty Murray:

On behalf of the National Urban League, a 107-year-old nonpartisan civil rights organization with 90 local affiliates serving more than 2 million people in 36 states and the District of Columbia, I write to express our concerns regarding the nomination of Mr. Kenneth L. Marcus for Assistant Secretary within the Office of Civil Rights at the U.S. Department of Education.  

As the chief civil rights enforcement officer in our nation’s public schools, Mr. Marcus would be responsible for ensuring all students have access to safe and welcoming school environments free from discrimination; as well as, equal access to educational opportunities regardless of race, socioeconomic status, immigration status, or ability.  After thoughtfully reviewing the responses Mr. Marcus gave during his confirmation hearing, and his inconsistent record with civil rights, it is clear that he lacks the commitment and qualifications to uphold the responsibilities of the position he seeks. Therefore, the National Urban League cannot in good conscience support his nomination. 

We urge the Senate Health, Education, Labor and Pensions (HELP) Committee to vote against his confirmation for the following reasons:

Mr. Marcus has a demonstrated history of hostility towards affirmative action and all race-based remedies to discrimination. Since 1978, the Supreme Court has consistently ruled in favor of colleges and universities using race as factor when making decisions about admission. Yet, as staff director of the U.S. Commission on Civil Rights during the Bush administration, Mr. Marcus used his position to advocate for dismantling affirmative action in law schools. On many occasions in both written statements and speeches, Mr. Marcus advanced the idea that affirmative action does more harm than good, even advocating to “delete the requirement that law schools seeking accreditation demonstrate a commitment to diversity” during his tenure at the American Bar Association. He later went on to use the federal government’s limited resources to produce an anti-affirmative action report that was found to be both unbalanced and biased. 

Mr. Marcus’ nomination threatens that long standing precedent and, if confirmed, will negatively impact the women and students of color who stand to benefit from affirmative action policies.  

Mr. Marcus lacks a commitment to enforce civil rights protections for students of color. In a stunning exchange with Sen. Elizabeth Warren in December, Mr. Marcus was asked if he would use his position in the Office of Civil Rights to address resource inequities in schools as those before him have done. His refusal to make a commitment to students who have been short-changed and deprived of an equal education is both troubling and unacceptable. 

At a time when low-income students and students of color make up the majority of the nation’s public schools we know that the resource inequities in public education are significant and growing rapidly each year. Addressing these inequities is a major responsibility of the Assistant Secretary position, making Mr. Marcus refusal to commit to an equal education all the more alarming. 

Mr. Marcus does not believe in disparate-impact discrimination. Disparate impact discrimination occurs if a policy is written and administered in a neutral way but still has disproportionate and unjustified effects on members of protected class (e.g., race neutral school discipline policies still result in the majority of school suspensions going to black children for the same offense as their peers). Disparate impact liability is an important legal redress for students of color in particular because it focuses on proving structural injustice as opposed to individual bias or racist intent. However, Mr. Marcus publicly stated that he does not agree that disparate impact discrimination is enough to constitute a civil rights violation. As you know, data released in 2015 from the Department of Justice revealed that students of color are disproportionately impacted by school zero tolerance policies and these polices exacerbate the school-to-prison pipeline. Mr. Marcus, if confirmed, will leave black students more vulnerable to suspensions and expulsions. Instead, students need a champion on these issues who will fight to guarantee every child’s right to equal access to education. 

America’s children require and deserve an Assistant Secretary for Civil Rights and leaders that believe it’s their birthright to receive a great, equitable public education. It’s clear that Mr. Marcus does not meet this standard and we believe his confirmation will exacerbate inequity and deepen existing discriminatory practices. We urge you to oppose his confirmation. 

Marc H. Morial
President and Chief Executive Officer
National Urban League

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